Britton v. South Bend Community School Corp.

• Decision Date: 25 September 1984
• Docket Number: No. S 82-283,S 82-485.,S 82-283
• Citation: 593 F. Supp. 1223
• Parties: Elmer BRITTON and Janet Kochanowski, individually and in behalf of all other similarly situated permanent public schoolteachers employed by South Bend Community School Corporation, Jeanne Renbarger, Plaintiffs, v. SOUTH BEND COMMUNITY SCHOOL CORPORATION, Defendants. Julia ANDREWS, John W. Berta, Rosemarie Bradford, Anita Golba, Barbara Gottlick, Helen Keller, Cleora Kelsch, Sandra J. Koch Bolka, Janet L. Kochanowski, Kenneth Marosz, Margaret McAllister, Linda Newcomer, Mary Pajakowski, John Panos, Sue Paulin, Gordon Polsgrove, Kathleen Renz, Dora L. Riddle, Perry B. Scott, Lynne D. Sill, Dale L. Strombeck, Judith E. Taelman, Joan Tetzlaff, Kathy Troester, John P. Wibbens, Alan S. Bell, Wallace Boocher, Kathryn A. Britton, Larry L. Edler, J.A. Garretson, Sue Hill, Bonita Hoover, Edward J. Linetty, Jean Meiss, Richard B. Rajter, Richard Tomaszewski, Patricia A. Toth, Terry Tulchinsky, Bonita Ujdak, Elmer Britton and Jeanne Renbarger, Plaintiffs, v. SOUTH BEND COMMUNITY SCHOOL CORPORATION, Hollis E. Hughes, Jr., William L. Wilson, Loretta Jacobson, Oscar T. Brookins, Anthony V. Luber, Eileen T. Bender, and Donald W. Yates, acting in their official capacity as members of the South Bend Community School Corporation Board of Trustees, Defendants.
• Court: U.S. District Court — Northern District of Indiana

593 F. Supp. 1223

Elmer BRITTON and Janet Kochanowski, individually and in behalf of all other similarly situated permanent public schoolteachers employed by South Bend Community School Corporation, Jeanne Renbarger, Plaintiffs, v. SOUTH BEND COMMUNITY SCHOOL CORPORATION, Defendants.

Julia ANDREWS, John W. Berta, Rosemarie Bradford, Anita Golba, Barbara Gottlick, Helen Keller, Cleora Kelsch, Sandra J. Koch Bolka, Janet L. Kochanowski, Kenneth Marosz, Margaret McAllister, Linda Newcomer, Mary Pajakowski, John Panos, Sue Paulin, Gordon Polsgrove, Kathleen Renz, Dora L. Riddle, Perry B. Scott, Lynne D. Sill, Dale L. Strombeck, Judith E. Taelman, Joan Tetzlaff, Kathy Troester, John P. Wibbens, Alan S. Bell, Wallace Boocher, Kathryn A. Britton, Larry L. Edler, J.A. Garretson, Sue Hill, Bonita Hoover, Edward J. Linetty, Jean Meiss, Richard B. Rajter, Richard Tomaszewski, Patricia A. Toth, Terry Tulchinsky, Bonita Ujdak, Elmer Britton and Jeanne Renbarger, Plaintiffs, v. SOUTH BEND COMMUNITY SCHOOL CORPORATION, Hollis E. Hughes, Jr., William L. Wilson, Loretta Jacobson, Oscar T. Brookins, Anthony V. Luber, Eileen T. Bender, and Donald W. Yates, acting in their official capacity as members of the South Bend Community School Corporation Board of Trustees, Defendants.

Nos. S 82-283, S 82-485.

United States District Court, N.D. Indiana, South Bend Division.

September 25, 1984.

Donald E. Wertheimer, Daniel H. Pfeifer, South Bend, Ind., for plaintiffs.

Franklin A. Morse II, David R. Melton, Robert J. Smith, Jr., South Bend, Ind., for defendants.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This action arises under the Fourteenth Amendment to the Constitution of the United States, 42 U.S.C. §§ 1981, 1983 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., the Indiana Constitution and the Indiana Teacher Tenure Act, I.C. 20-6.1-4-1, et seq. Jurisdiction of this court is predicated upon a federal rights question under 28 U.S.C. § 1331, civil rights claims under 28 U.S.C. § 1343 and an employment discrimination (Title VII) claim under 42 U.S.C. § 2000e-5(f)(3). Jurisdiction over the state claims is grounded on a theory of pendent claim jurisdiction. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). This case was tried before the court sitting without a jury on April 26-27, 1984. Post-trial briefs and proposed findings of fact and conclusions of law were submitted to the court by all parties on July 30, 1984. Final argument was held in South Bend, Indiana, on August 3, 1984. This memorandum and order constitutes this court's findings of fact and conclusions of law for purposes of F.R. Civ.P. 52(a).

I.

This dispute has its genesis in the voluntary adoption by the South Bend Community School Corporation Board of Trustees (Board) of an affirmative action plan (Resolution 1020) designed to increase the percentage of minorities in the teaching force. The plaintiffs are white teachers who were laid off by the South Bend Community School Corporation (School Corporation) on June 7, 1982. Resolution 1020 was adopted on December 18, 1978 after several discussions at Board meetings focusing on the recruiting and hiring practices of the School Corporation and the low percentage of minorities on the School Corporation's teaching staff. Over the course of these discussions, statistics were presented to the Board exhibiting the disparity between the percentage of blacks in the student body.

One such presentation was made on October 7, 1978 by Mr. William Roberts, acting Assistant of Superintendent of Personnel. He introduced statistics showing the number of black teachers and the number of black employees from 1970-1978. Statistics were also presented showing the number of black teachers in each school in 1970 and 1978 and the number of blacks who had left the School Corporation since 1975. Mr. Willie Green, a black community activist, presented other statistics comparing the percentage of black students with the percentage of black staff members.

Resolution 1020, as finally adopted, provides that the School Corporation will strive to increase the percentage of minorities in its teaching force until that percentage equals the percentage of minorities in its student body. The Board specifically resolved to increase the percentage of minority pupils because it deemed it essential that the student population, both black and white, have a sufficient number of minority teachers to act as role models.

During the next three school years, (1978-79, 1979-80 and 1980-81), the School Corporation hired a greater percentage of black teachers then it had hired in any prior three-year period since records have been kept regarding the racial composition of the teaching force. From the 1978-79 school year to the 1981-82 school year, 63 out of the 161 teachers hired were black. The percentage of black teachers in the teaching force increased from 10.4% in the 1978-79 school year to 13% in the 1981-82 school year. The percentage of black pupils in the School Corporation in the 1981-82 school year was 25.42%.

On February 8, 1980, Resolution 1020 was incorporated into the Consent Order entered by this court in United States of America v. South Bend Community School Corporation, et al., Cause No. S 80-35.¹ The United States Department of Justice had commenced that action earlier on the same day. In its complaint, the Justice Department alleged that the School Corporation had engaged in acts of discrimination which were intended to segregate, and had the effect of segregating, students and faculty on the basis of race within the school system.

The Consent Order required the School Corporation to formulate a specific desegregation plan for student assignment by September 1, 1980. In addition, the Order required the School Corporation to continue to pursue its present affirmative action hiring policies. Further the Consent Order contained the School Corporation's denial that it ever engaged in intentional discrimination. At no time were findings made that the School Corporation had engaged in intentional discrimination against any black applicant or teacher.

On May 16, 1980, the School Corporation entered into a three-year Collective Bargaining Agreement with the NEA-South Bend, the exclusive bargaining representative for the School Corporation's teachers. The Agreement, in Article XXIII, § 9, provides that in the event of a reduction in force, "No minority bargaining unit employee shall be laid off." The term "minority" referred only to black teachers. The provision had not appeared in any prior collective bargaining agreements between the School Corporation and the NEA-South Bend.

Prior to and during the negotiations, the administration and the Board anticipated that the Board might have to lay off teachers during the term of the 1980-83 Collective Bargaining Agreement. Thus, the School Corporation negotiating team proposed the "no minority lay-off" clause to maintain the success it had achieved in recruiting minority teachers pursuant to Resolution 1020.

The negotiations which led to the 1980-83 Collective Bargaining Agreement lasted two weeks. After the negotiations, representatives from the NEA-South Bend met with the teachers to discuss the proposed Collective Bargaining Agreement. Article XXIII, § 9 was discussed at that meeting. Thereafter, the teachers ratified the proposed agreement by a substantial margin. No member of the Union ever filed a grievance alleging that he or she was not fairly represented by the NEA in the negotiations leading to the 1980-83 Collective Bargaining Agreement.

On April 26, 1982, the Board determined by resolution to eliminate 232 teaching positions, necessitating an actual reduction in force of 188 teachers.² The Administration promptly notified the 188 teachers, including the plaintiffs, that their contracts were being considered for cancellation as is required by I.C. § 20-6.1-4-11. After receiving this notice, certain teachers pursuant to I.C. 20-6.1-1-1 et seq., filed written requests for a statement of why the Board was considering their contracts for cancellation. In compliance with such requests, the Board advised those persons that their contracts were being considered for cancellation because of an alleged justifiable decrease in the number of teaching positions resulting from declining pupil enrollment and increased operating expense. Certain teachers also requested a hearing pursuant to I.C. § 20-6.1-4-11, on the proposed reduction in force and the cancellation of their contracts.

The Board scheduled the hearing for May 24, 1982. On the day of the hearing, counsel for several of the teachers asked for, and received, a continuance to better prepare for the hearing. The Board rescheduled the hearing for June 1, 1982 at 4:00 o'clock P.M. Counsel for the teachers did not object to the appointed time of the hearing nor did they seek any other continuance throughout the course of the proceeding. The hearing, which was open to the public, began at 4:00 o'clock P.M. and lasted until 6:00 o'clock A.M. on June 2, 1982. The entire Board presided at the hearing with Mr. Hollis Hughes, president of the Board, acting as chief hearing officer.

The rescheduled hearing was conducted along guidelines adopted from materials obtained from the Indiana State School Board Association and supplemented by the advice of counsel for the Board. During the course of the proceedings, several teachers individually challenged their position on the seniority list. Further, the Board refused to allow one witness to testify out of turn. This ruling was in accord with an agreement entered into previously among the parties that no deviation in the proceedings would occur absent agreement among the parties. The Board also asked one of the witnesses for the teachers to step down after the witness had ignored several admonitions from the teachers' couns...